B-153136, NOV. 1, 1965
Highlights
B. BERRY BARGER: THIS IS IN REPLY TO YOUR LETTER OF OCTOBER 16. YOU SAY THAT YOU WERE ON THE AIR FORCE REEMPLOYMENT PRIORITY LIST FOR THE DENVER COMMUTING AREA. YOU POINT OUT THAT THIS ACTION WAS REPEATED ON JUNE 21. WHEN AN IDENTICAL POSITION WAS FILLED BY TRANSFER FROM ANOTHER AGENCY. YOU ARE. WHEN YOU WERE REEMPLOYED FROM THE REEMPLOYMENT PRIORITY LIST AS MANAGEMENT ANALYST. THE QUESTION OF WHETHER YOU WERE PROPERLY QUALIFIED FOR THE POSITION OF PERSONNEL MANAGEMENT SPECIALIST. THAT WAS FILLED ON MARCH 28. IS A MATTER FOR ADMINISTRATIVE DETERMINATION BY THE DEPARTMENT CONCERNED OR BY THE CIVIL SERVICE COMMISSION UNDER WHOSE REGULATIONS REEMPLOYMENT PRIORITY LISTS ARE ESTABLISHED. EVEN IF A VIOLATION OF YOUR REEMPLOYMENT RIGHTS SHOULD BE HELD TO HAVE OCCURRED.
B-153136, NOV. 1, 1965
TO MRS. B. BERRY BARGER:
THIS IS IN REPLY TO YOUR LETTER OF OCTOBER 16, 1965, IN WHICH YOU REQUEST RECONSIDERATION OF OUR DECISION OF OCTOBER 11, 1965, B-153136, WHICH SUSTAINED OUR SETTLEMENT OF SEPTEMBER 3, 1965, DISALLOWING YOUR CLAIM FOR SALARY AS A GS-11 AND RECREDIT OF ANNUAL AND SICK LEAVE FOR THE PERIOD FROM MARCH 28, 1961, TO DECEMBER 11, 1961.
YOU SAY THAT YOU WERE ON THE AIR FORCE REEMPLOYMENT PRIORITY LIST FOR THE DENVER COMMUTING AREA, QUALIFIED FOR THE POSITION OF PERSONNEL MANAGEMENT SPECIALIST, GS-11, AND THAT THE AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER COLORADO, ON MARCH 28, 1961, IMPROPERLY FILLED THE POSITION BY TRANSFER OF AN EMPLOYEE FROM THE DEPARTMENT OF THE ARMY. YOU POINT OUT THAT THIS ACTION WAS REPEATED ON JUNE 21, 1961, WHEN AN IDENTICAL POSITION WAS FILLED BY TRANSFER FROM ANOTHER AGENCY. YOU ARE, THEREFORE, ASSERTING A CLAIM FOR SALARY FROM MARCH 28, 1961, UNTIL DECEMBER 11, 1961, WHEN YOU WERE REEMPLOYED FROM THE REEMPLOYMENT PRIORITY LIST AS MANAGEMENT ANALYST, GS-11.
THE QUESTION OF WHETHER YOU WERE PROPERLY QUALIFIED FOR THE POSITION OF PERSONNEL MANAGEMENT SPECIALIST, GS-11, THAT WAS FILLED ON MARCH 28, 1961, IS A MATTER FOR ADMINISTRATIVE DETERMINATION BY THE DEPARTMENT CONCERNED OR BY THE CIVIL SERVICE COMMISSION UNDER WHOSE REGULATIONS REEMPLOYMENT PRIORITY LISTS ARE ESTABLISHED. SEE 5 CFR SEC. 20.7 (1961).
HOWEVER, EVEN IF A VIOLATION OF YOUR REEMPLOYMENT RIGHTS SHOULD BE HELD TO HAVE OCCURRED--- A MATTER ON WHICH WE EXPRESS NO OPINION--- WE ARE NOT AWARE OF ANY AUTHORITY FOR PAYMENT OF SALARY TO YOU FOR THE PERIOD OF YOUR SEPARATION. THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652, PROVIDES FOR PAYMENT OF COMPENSATION TO AN EMPLOYEE WHO HAS BEEN REMOVED OR SUSPENDED FROM THE SERVICE AND WHO HAS BEEN RESTORED THERETO ON THE BASIS THAT SUCH REMOVAL OR SUSPENSION WAS UNWARRANTED OR UNJUSTIFIED. THOSE CONDITIONS ARE NOT PRESENT IN YOUR CASE. WE KNOW OF NO STATUTORY AUTHORITY FOR PAYMENT OF COMPENSATION FOR A PERIOD OF SEPARATION IN THE SITUATION YOU PRESENT. SEE 34 COMP. GEN. 559; HYMAN V. UNITED STATES, 157 F.SUPP. 164.
THEREFORE, THE DISALLOWANCE OF YOUR CLAIM FOR BACK PAY AND LEAVE CREDIT MUST BE SUSTAINED.